Involuntariness, agency and the criminal law

by Klimchuk, Dennis

Abstract (Summary)

How and where we ought to draw the distinction between voluntary and involuntary action is an old and
enduring philosophical question. I consider the answers given to this question in the context of the
common law. I approach the issue initially through a review of the development, from its first appearance
in pre-Norman law to present day law, of the principle that only voluntary actions may be punished (the
voluntariness requirement). The principal question on which I focus is how to make sense of the role ot
public standards of behaviour in the legaI distinctions between voluntary and involuntary action without
it turning out that "involuntary" just means "unworthy of punishment."
The bulk of this study is taken up with a consideration of this and related conceptual problems
through an examination of the recent development of the defence of automatism in Canadian and EngIish
law. Automatism is raised as a defence when the accuwd claims to have lost conscious control over the
movements of her body. I investigate the models of human action and its explanation to which the
defence is committed, and the relationship between these models and the goals of criminal law through
an examination of certain formative periods of the two defences to which automatism is most closely
related, insanity and provocation.
Against the background of this investigation, I argue that, while any acceptable theory of
punishment entail the voluntariness requirement, the norms on the basis of which we sort voluntary and
involuntary actions are different from the norms on the basis of which we decide which sorts of actions
and persons deserve punishment. I sketch a general account of involuntary action, according to which
to say of someone that her actions were involuntary is to urge the acceptable of a description of hcr
doings according to which they were the effect of some external cause. It follows that the distinction
between voluntary and involuntary action depcnds upon the distinction between the agent and the
circumstances in which she acts. I conclude by considering the prinapal issues raised by this more basic
distinction.